Gay rights

[The Human Q-Tip]

Ok. This is fair and I understand your position. To summarize, it doesn't matter that the framers did not explicitly include corporations in the First Amendment. What matters is that they aimed to protect free speech, and both individuals and corporations fall under the free speech umbrella. Correct?

Yes, what matters is that they did not explicitly exclude corporations from the Congressional prohibition. Actually (and I make this point more fully below) I think a for-profit corporation that produces political content would have been considered part of "the press" regardless of whether it was in that business full-time or not.

I would also point out that in Virginia State Pharmacy Board, which you cited below, Blackmun expressly notes that the First Amendment is as much about the right to hear what someone wants to say as it is the right say it. As I said, it's a huge bias in favor of the free flow of opinions/information.

if corporations were not contemplated, which I do not believe they were, then even if we do accept your theory that I summarized, then corporations would not have the absolute (not entirely absolute but close enough) protections of individual free speech, but a lesser right. Where do you come out on that theory?

I'm confused. My theory is that they are covered, therefore their rights would not be lesser.

It is why Congress can limit and compel corporate speech in a way that would never be acceptable to individuals. The Court held so in Virginia State Pharmacy Board.

I disagree. I think Virginia State Pharmacy Board turned on the fact that the speech was commercial, not that the speaker was a corporation. I think you'd get the same result whether you were talking about the commercial speech of an individual proprietor, partnership, unincorporated association, or corporation. Or at least, you should get the same result.

Again back to Citizens United. I anticipate your response is that we are not talking about commercial speech, but political speech, and there should be a blanket ban on said limitation.

I do not take the position that there should be a blanket ban on any limitations on political speech. But I do take the position that whatever limitations exist on political speech should apply equally to individuals and corporations.

Congress is well within its power to narrowly tailor laws to limit corporate speech around elections in order to ensure a fair political process by delegating regulatory authority to the FEC.

Okay, and I still don't see the basis for that leap, nor do I see the connection between political speech and a "fair political process" The idea that a for-profit, non-media corporation buying a one minute ad threatens a fair political process, but a 24/7 for-profit media corporation blasting politics does not, strikes me as absurd. As far as I'm concerned, it is blatant free-speech favoritism of one source of opinions versus others.

I mentioned this before, but I think the core analytical problem has become the "press" distinction. The "press" used to be identified by the fact that it produced information for mass dissemination, in contrast to "speech", which was the spoken words of individuals heard by a smaller group.

But with modern media and communications, almost anyone can produce information for mass dissemination. In essence, I think "press" should be determined what you are doing rather than by who you are. And I think that is more consistent with the original intent of the words. Many early newspapers/pamphlets were published by individuals who did it more as a hobby, or at least in addition to other things. What made them "press" was that they printed the paper.

So, I'd say that if a corporation 1) produces an ad and buys air time for that ad, or 2) gives money to someone else to produce the commercial and buy the air time, it is acting as a member of the press, and should be considered as such in terms of constitutional protections with respect to those actions.

Even now, we're starting to get into squirrely stuff with respect to whether bloggers are members of the press, and I think that's ridiculous. I don't think the freedoms of speech or of the press were even intended to be fundamentally different at al. So, if you're giving me that for-profit media corporations are covered by freedom of the press, I think that should apply to any corporation as it engaged in similar activity, no matter how large or small a part of the "business" it is.

 

[gourimoko]

So, I'd say that if a corporation 1) produces an ad and buys air time for that ad, or 2) gives money to someone else to produce the commercial and buy the air time, it is acting as a member of the press, and should be considered as such in terms of constitutional protections.

This is absurd, and no one would ever accept this interpretation. Political candidates and campaigns don't even have the same freedoms and protections as the press but SuperPACs should?

In the Obama campaign, we had to operate under very strict guidelines when accepting donations, spending money (even on Starbucks), proper disclosures, etc.. There was a mountain of paperwork, extensive regulation and restrictions, and FEC filings. The threat of potentially breaking the law was very real.

 

[The Oi]

Can one of you dorks explain the Franz Ferdinand joke to me?

 

[gourimoko]

Can one of you dorks explain the Franz Ferdinand joke to me?

"His assassination in Sarajevo precipitated Austria-Hungary's declaration of war against Serbia. This caused the Central Powers (including Germany and Austria-Hungary) and Serbia's allies to declare war on each other, starting World War I."

The start of WWI was actually far more complicated than this, but this was one of the triggers.

 

[The Oi]

"His assassination in Sarajevo precipitated Austria-Hungary's declaration of war against Serbia. This caused the Central Powers (including Germany and Austria-Hungary) and Serbia's allies to declare war on each other, starting World War I."

What's that have to do with gay rights?

 

[gourimoko]

What's that have to do with gay rights?

The Archduke has a 1d6 chance of being gay; but his race (German) has a 2x gay multiplier giving a 2d6 chance.


(since you will have no idea what I'm talking about, this is a nerd joke by a nerd)

 

[The Oi]

The Archduke has a 1d6 chance of being gay; but his race (German) has a 2x gay multiplier giving a 2d6 chance.


(since you will have no idea what I'm talking about, this is a nerd joke by a nerd)

Je
sus
Christ
.

If there is a dorkier joke out there, I haven't heard it. Maybe something related to pi?

 

[The Human Q-Tip]

Already did in posts 201 and 203.

Your insistence that Citizens United was about the banning of a movie is how you misrepresent a case.

And your insistence that it wasn't is an attempt to obfuscate the practical effects of the law.

You are narrowly correct that it began with the FEC banning the showing of a movie, but it snowballed into something far larger (due to Roberts' shenanigans), with the opinion making sweeping changes to both election law and how money is spent in the political process.

First, I don't agree with the characterization of Robert's "shenanigans". JeffreyToobin's rather famous sore-loser claim in that regard was shot down by a fellow liberal who also disagreed with the decision, but who thought Robert's actions were perfectly proper. And in any case, that has nothing to do with whether or not the decision was decided correctly.

http://www.scotusblog.com/2012/05/jeff-toobin-on-citizens-united/

In terms of shortcuts, what the hell am I supposed to do -- cut and past the majority opinion, and all the oral arguments?? This format forces shorthand explanations that inevitably can be picked apart. I don't have the luxury of aggressive questioning in oral argument and writing a 100 page opinion.

The deputy SG's arguing the case for the Obama Admnistration admitted in oral argument --but only after sharp questioning and pressing the rep on the logic underlying their case -- that the government's position would permit not only the banning of "Hillary, the Movie", but also the banning of a political book if it contained even one sentence of political advocacy. I'm not making that up.

They had to ask for a re-argument to try to back off that, and ended up drawing a distinction that I --and a great many others -- thought was unconvincing as hell. But the fact that one of the finest lawyers in the whole country admitted that his argument ultimately would justify book banning should be a wake-up call for some people, and let them know that when you actually look at the political questions involved, it isn't just about money. The fact that the case was about banning a movie -- because that's how the FEC was applying the damn law -- should not be lost.

So let's see how "peripheral" Hillary the Movie really was....

If McCain-Feingold had been upheld, could the FEC have banned a 30 second political ad within 60 days of a general election, if it was produced and paid for by a for-profit corporation, by a non-profit corporation, or by a union? The answer is yes, isn't it? So what's the difference between banning that, and banning a movie that the FEC called "little more than a 30 second campaign ad stretched to an hour?"

Now, the key leap you apparently (I'm guessing) think I've made is between monetary contributions, and actual speech/press. "The case wasn't about banning movies or books -- it was really about limiting monetary contributions." Right?

Except that ultimately, and for all the reasons stated in the majority opinion, that's the proverbial distinction without a difference. It was about a corporate expenditure of funds to produce a political movie that they wanted to show within 60 days of an election. Pay per view, I should add.

Pretending that limiting the expenditure of money necessary to produce and disseminate political speech is somehow different from the right of speech/press itself is the equivalent of saying "we're not limiting what you write, we're just limiting your money to buy ink, paper, and printing presses."

In contrast, there were laws limiting direct payments to public officials -- bribery -- in existence at the time of ratification. Therefore, campaign finance laws that limit direct contributions to candidates are consistent with the original understanding of the 1st Amendment, and those restrictions were not implicated by Citizens United.

 

[gourimoko]

Je
sus
Christ
.

If there is a dorkier joke out there, I haven't heard it. Maybe something related to pi?

Can provide upon request.. lol..

 

[The Oi]

Can provide upon request.. lol..

Give me one I will get and one I won't.

 

[The Human Q-Tip]

Can one of you dorks explain the Franz Ferdinand joke to me?

Franz Ferdinand was the Archduke of Austria whose assassination in Sarajevo set off the First World War. The argument is that his assassination was not the underlying cause of the war but simply the trigger. nasty Nate compared it to the movie banned by the SEC in Citizens United. Essentially, he was saying the movie is what triggered the case, but actually had very little to do with it.

I disagree. I think that Hillary the movie was not just the trigger for the case, but rather was an unpleasant, concrete example of the law's actual effects.

 

[gourimoko]

Give me one I will get and one I won't.

(sqrt(-1)+2^3*sum(x)π)

I dunno if you'll get that or not, but it's kinda funny...

 

[col63onel]

(sqrt(-1)+2^3*sum(x)π)

I dunno if you'll get that or not, but it's kinda funny...

And it was delicious!

Why should you never drink a beer while doing Calculus?

 

[gourimoko]

And it was delicious!

hahaha!

Why should you never drink a beer while doing Calculus?

Don't drink and derive!

lololol... I used to tell these to my students.. ha!

 

[The Human Q-Tip]

See, I am very sympathetic to Originalist thinking. I wholeheartedly believe in the separation of powers and roles of government. We need a fundamental and consistent basis to draw from in society, best of which is the Constitution. And we should amend the Constitution when society determines it should go in a different direction from it.

Based on what you said below, you don't believe that if the question at issue is one you really care about, though.

But I think your example of slavery is very telling.

Well, it should be. I deliberately picked the most polarizing topic possible to smoke out people's bottom-line opinions on the role of the Court. And it worked.

But isn't it funny that charges of activist judges or pious statements that we should just let the political process play out almost always arise out of matters of civil rights? I don't think that is a coincidence.

I don't think it's a coincidence either.. It's easy to claim respect for separation of powers when it's a mundane issue. It's when it is an emotional issue that a lot of people, including Justices, are most likely to abandon it. At that point, adherence to judicial restraint goes out the window, and they just want to rule on what they feel is morally appropriate. And civil rights issues can be emotional, so that's why we see it in cases about "rights".

Of course, "civil rights" are in the eye of the beholder. Many on the left who supposedly are defenders of individual rights took the opposite position with respect to the Second Amendment. And I personally think that if we were going to invent rights, the "right" to refuse to perform a personal service, such as preparing a cake specifically for a gay wedding (as opposed to simply selling something ready made on a shelf) should be recognized.

It is easy to say we should follow the slow political process, but I find that irredeemably callous when the rights of others are being trampled on at the present.

The question is who gets to define what the "rights of others" are.

And I say it is not a coincidence because we passed the 14th Amendment saying everyone must be treated equally under the law in response to what the political process had previously produced - chattel slavery of African Americans and the withholding of rights for women. So I believe the Constitution itself, through the 14th Amendment, rejects this idea of waiting for the political process to play out when it comes to the due process and equal protection of minorities. Which, ironically, is an originalist way of thinking now that I think about it.

Just to be clear here, you are saying that you support recognizes a new right as fundamental even if that is directly contrary to the understanding at the time the Constitution/Amendment was passed, correct?